Opinion
H025054.
11-21-2003
KATHRYN CANLIS, SANTA CRUZ COUNTY DISTRICT ATTORNEY, Petitioner and Appellant, v. CIVIL SERVICE COMMISSION OF SANTA CRUZ COUNTY et al., Respondents. ALAN JOHNSON, Real Party in Interest.
Appellant District Attorney Kathryn Canlis appeals from an order denying her petition for writ of mandate (Code Civ. Proc., § 1094.5) to set aside a decision by respondent Civil Service Commission of Santa Cruz County (Commission). At issue is whether real party in interest Alan Johnson was a probationary employee of the district attorneys office at the time of his dismissal. For the reasons stated below, we affirm the order.
Appellant also claims that she is appealing from an order denying her motion for summary judgment. An order denying a motion for summary judgment is not appealable. (Travelers Cas. & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.)
I. Statement of Facts
In March 1992, then District Attorney Arthur Danner hired Johnson as chief inspector. At that time, the position was an "at-will" or exempt position, and thus Johnsons employment could be terminated without just cause. In December 1998, Danner was appointed to the superior court.
In February 1999, the Board of Supervisors appointed Ron Ruiz to serve as district attorney. Ruiz retained Johnson as chief inspector. In April 2000, Ruiz requested that the Commission designate the position of chief inspector as a civil service position rather than an "at-will" position. The Commission approved Ruizs request. On May 5, 2000, the Commission asked the Board of Supervisors to amend County Code section 3.12.040 to delete the chief inspector position from the list of positions exempt from the civil service system. On June 6, 2000, the Board of Supervisors approved the amendment to the code. The amendment was effective on July 7, 2000. Johnson continued to perform the same services for the district attorneys office.
There was conflicting evidence as to whether Johnson was notified that he was a probationary employee.
In November 2000, appellant won the election for district attorney, and was sworn in on December 7, 2000. On January 4, 2001, appellant terminated Johnsons employment.
Shortly after appellant terminated Johnsons employment, the Commission learned that he was considering legal action against the County to challenge the termination. The Commission then held a hearing on June 6, 2001 to determine whether Johnson was a probationary employee at the time of his dismissal. Following the hearing, the Commission concluded that Johnson was not required to serve a probationary period to enjoy civil service protection.
The Commissions decision stated, in relevant part, that "[t]he list of circumstances in the Civil Service Rule is exhaustive, not illustrative; all of those circumstances require an `appointment. As defined in the Personnel Regulations, an `appointment involves acceptance of a `vacant position in which the individual `begins work. [¶] In the case of Alan Johnson, there was no `vacancy. He was an incumbent Chief Inspector. He did not `begin work in that position on July 7, 2000; he had held that position in an at-will capacity for more than eight years. At no time had he vacated his position. It was the same position in the same department. There was no reclassification, transfer, or promotion. Whether by omission or oversight, the Commission finds that no Civil Service Rule exists which would require an employee in these specific circumstances to serve a probationary period. [¶] . . . Because of the omission or, at best the ambiguity, of the Rules, the Commission is required to resolve this matter in a light most favorable to the employee. To do otherwise would not promote fairness in County Civil Service employment and would be contrary to the interest of justice. County Code 3.04.020. [¶] . . . Based on (1) the term `appointment as defined in County Personnel Regulations Section 110 — page 2, item B.8, and (2) the term `appointment as stated in Civil Service Commission Rules, Section 130 — page 32, item 2, the Commission finds that, upon attaining Civil Service status on July 7, 2000, Mr. Johnson was not required to serve a probationary period. Therefore, Mr. Johnson was not a probationary employee at the time he was released from his position with the Santa Cruz County District Attorneys Office."
Johnson then filed an appeal of his dismissal. After the Commission held a hearing on March 6, 2002, it issued a decision that ordered reinstatement of Johnson to the chief inspector position retroactive to January 5, 2001.
On March 11, 2002, appellant filed a petition for writ of mandate in which she sought to set aside the Commissions decision that Johnson be returned to the chief inspector position. The Commission and Johnson filed demurrers to the petition, which the trial court overruled. On July 26, 2002, appellant brought a motion for summary judgment.
The trial court denied the motion for summary judgment and the petition for writ of mandate. The trial court found that "no Civil Service Rule exists which would require an employee in these specific circumstances to serve a probationary period."
II. Discussion
A. Standing
Johnson contends that appellant has no standing to seek a writ of mandate setting aside the Commissions decision. We disagree.
Operating Engineers Local #3, IUOE, AFL-CIO and Service Employees International Union Local #415, AFL-CIO (collectively the Union) have filed a brief in support of Johnson. They also contend that appellant has no beneficial interest in whether an individual has become a permanent employee of Santa Cruz County.
County Code section 1.04.170 states, in relevant part, that "[j]udicial review of any decision of the county or of any commission, board, officer or agent thereof, may be had pursuant to section 1094.5 of the Code of Civil Procedure . . . ."
"`[W]here a party has a beneficial interest in the subject matter of the proceedings and a right to appear, and has appeared before the administrative agency he properly may institute proceedings for review by mandamus. " (Department of Health Services v. Kennedy (1984) 163 Cal.App.3d 799, 802.) "Beneficially interested generally means the petitioner has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large." (Sacramento County Fire Protection Dist. v. Sacramento County Assessment Appeals Bd. (1999) 75 Cal.App.4th 327, 331, internal citation and quotation marks omitted.)
Here appellant appeared before the Commission and she had a beneficial interest in the subject matter. First, the Commissions decision had a significant impact on appellants ability to choose the chief inspector, who served a crucial role in her management team. Second, the Commissions decision directly affected the district attorneys budget by requiring that Johnson be reinstated with back pay. Since appellant had an interest over and above that held by the general public, she had standing to seek judicial review of the Commissions decision.
Relying on Union of American Physicians and Dentists v. County of Los Angeles (1983) 144 Cal.App.3d 236, Johnson contends that where a "County ordinance designates one arm of County government to be the final decision-maker in a certain sphere of County operation, California courts do not allow a different County agency that is subject to that ruling to seek the aid of the courts to reverse the decision." Johnsons reliance on this case is misplaced. In Union, the county ordinance did not provide for judicial review of bargaining unit decisions. In contrast, here County Code section 1.40.170 authorizes judicial review of the Commissions decision.
Johnsons reliance on Sacramento County Fire Protection District v. Sacramento County Assessment Appeals Board II, supra, 75 Cal.App.4th 327, is also misplaced. In that case, the assessment appeals board accepted a stipulation between a taxpayer and the assessor that significantly reduced the assessed value of the taxpayers property. As a result of the boards decision, the fire district was required to refund a portion of previously collected tax dollars. The reviewing court held that the fire district did not have standing to challenge the boards decision, because the fire district had no right to appear before the board, it did not appear, and its interest in the assessed valuation assigned to a particular piece of property was no greater than that of the general public. (Id. at p. 332.) In the case before us, appellant had a right to appear before the Commission, did appear, and had a beneficial interest in whether Johnson was considered a probationary employee at the time of his dismissal.
Acknowledging that no case has held that a public employer has no standing to challenge the decision of a civil service commission, Johnson and the Union rely on cases discussing the standard of review to be applied in a petition for writ of mandate where the petitioner is challenging the decision of the civil service commission. Courts have held that since a public employer has no "fundamental vested right" to terminate an employee, substantial evidence, rather than independent judgment, review is appropriate. (Los Angeles County Dept. of Parks & Recreation v. Civil Service Commission (1992) 8 Cal.App.4th 273, 279; Lowe v. Civil Service Commission of Sacramento County (1985) 164 Cal.App.3d 667.) Standing, however, involves a determination as to whether a party has a "beneficial interest," not a "fundamental vested right." Accordingly, there is no merit to this contention.
B. Standard of Review
In considering a petition for writ of mandate, the court must determine "whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
Johnson contends that the instant case implicates the substantial evidence standard of review. We disagree. Here the issue is whether Johnson was a probationary employee as defined in the County Code and Civil Service Commission Rules. Where "we are called upon to interpret statutes or rules dealing with employment of public employees, such issues involve pure questions of law which we resolve de novo." (Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168, internal citation omitted; see also, Mansell v. Board of Administration of the Public Employees Retirement System (1994) 30 Cal.App.4th 539, 544.)
C. Interpretation of County Code and Civil Service Commission Rules
The Civil Service Commission Rules are set forth in section 130 of the Personnel Regulations and References of Santa Cruz County (Regulations).
"Certain general principles of statutory construction to aid us in our task are well established. We begin with the fundamental rule that a court should ascertain the intent of the [legislative body] so as to effectuate the purpose of the law. In determining such intent the court turns first to the words themselves for the answer. We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. [A] construction making some words surplusage is to be avoided. When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear. Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." (California School Employees Association v. Compton Unified School District (1985) 165 Cal.App.3d 694, 700, internal citations and quotation marks omitted.) We also note that the interpretation of the County Code and the Civil Service Commission Rules "shall be made under a fair import of their terms, and with a view to effect their object and to promote justice." (County Code, § 3.04.020.)
Here when the Board of Supervisors enacted an amendment to County Code section 3.12.040, it deleted the chief inspector position from the list of positions exempt from the civil service system. Thus, the position held by Johnson was no longer an "at-will" position. There was nothing in the Boards action indicating whether Johnson was then required to serve a period of probation.
To support her position that Johnson became a probationary employee when section 3.12.040 was amended, appellant asserts that all employees must serve a probationary period prior to achieving permanent status.
County Code section 3.28.090 states, in relevant part, that "[t]he rules prescribed by the civil service commission shall provide for a period of probation not less than six months nor more than one year immediately following appointment . . . before such appointment . . . is made complete, during which period a probationer may be dismissed, . . .without right of hearing in the matter . . . ."
County Code section 3.28.030 states: "The rules prescribed and enforced by the civil service commission shall provide for the appointment to vacant positions within the classified service in accordance with the rules adopted hereunder."
Civil Service Commission Rules, Section 130, rule E, subd. (1) provides, in relevant part, that "a probationary period equivalent to six months shall apply to all classes . . . ." Subdivision (2) of this rule provides that "[a]ll person appointed to regular or limited term positions in the classified service shall serve a probationary period if appointed to any class in which they have not previously held permanent status. A probationary period must also be served upon: reinstatement, substitute appointment, appointment to a former higher class, appointment to a position in the classified service from non-civil service status, appointment from a Countywide re-employment list."
The issue then becomes whether Johnson was "appointed" to the chief inspector position in July 2000. Regulations, section 110, subdivision (B)(8) defines "appointment" as "[t]he lawful offer to a person and his or her acceptance of a vacant position, effective on the date the individual begins work in the position." Here Johnson did not begin working in the chief inspector position on July 7, 2000. He had been working as chief inspector for over eight years. Thus, the position was not vacant. Since the position was not vacant, he could not be appointed to the position within the meaning of section 3.28.090 or rule (E). As the Commission recognized, the Code and Civil Service Commission Rules, which require that an employee serve a probationary period, are not applicable to an employee who has been working in a position that is changed from "at-will" to exempt status.
In response, appellant contends that "common sense dictates that every employee has to be `appointed to a civil service position in order to assume such a position." However, the definition of terms in the Regulations specifies when an appointment occurs. An appointment did not occur when the Board amended the code.
Moreover, we are not persuaded by appellants argument that our conclusion reaches an absurd result. A probation period is defined as a "period of service used for employee training, adjustment and evaluation served upon initial appointment to a class." (Regulations, section 110, subdivision (B)(58).) "[T]he object and purpose of ... statutes [providing for a probationary period] ... is to provide the appointive power with a reasonable opportunity to observe and evaluate an employees performance on the job before according him or her the status of a permanent employee." (California School Employees Association v. Compton Unified School District, supra, 165 Cal.App.3d 694, 699, internal citations and quotation marks omitted.) Here Johnson served a "probation period" of over eight years, thereby providing ample opportunity for training, observation, and evaluation.
III. Disposition
The order is affirmed.
We concur: Rushing, P.J., Wunderlich, J.